Environmental Law Clinic News, 2010-2011

Over the course of the 2010-2011 academic year, the Environmental Law Clinic brought to a conclusion some very long-standing matters and embarked on several new ones, with students drafting complaints, motions, and appellate briefs, and presenting or helping to prepare for oral arguments before various state and federal courts.

Building on the prior work of clinic students before an administrative tribunal and then a state trial court, Collin Wedel ’11 successfully defended the clinic’s earlier victory before a state appellate panel in the auspicious setting of the California Supreme Courtroom in San Francisco. Following a cogent and persuasive oral argument by Collin, the appellate court affirmed the trial court’s decision, upholding the administrative dissolution of a rogue water district that had impeded the state’s efforts to purchase property from willing sellers in the coastal estuary formed by the three forks of the Smith River in Northern California – the only undammed coastal river system in the state. The properties in question are effectively undevelopable for physical and legal reasons, and the state has been purchasing them for inclusion in an existing wildlife refuge. The dissolution of the water district eliminates a major obstacle to the acquisition program. Collin also led the clinic’s defense of a Ninth Circuit victory in our Eagle Mountain Landfill matter – a decade-old case involving federal approval for what would be the nation’s largest garbage dump adjacent to Joshua Tree National Park – drafting oppositions to both a petition for rehearing en banc and a later petition for certiorari to the U.S. Supreme Court. Collin closed out the year, and his law school career, by drafting the lead argument in an amicus brief for the D.C. Circuit (filed jointly with the Columbia Law School environmental clinic) that supported the U.S. EPA’s “endangerment” finding for greenhouse gas pollutants – the first, necessary step in addressing these emissions under the Clean Air Act.

Several clinic students worked throughout the year to develop and prosecute a potentially ground-breaking agricultural water pollution case on behalf of Monterey Coastkeeper. During the fall quarter, Brigid DeCoursey ’12, Aviva Horrow ’12, and Emma Laughlin ’12 researched a variety of legal theories and drafted the complaint. The client’s goal is to force agricultural polluters, who are exempt from regulation under the federal Clean Water Act, to begin cleaning up their discharge of pesticides, nutrients, and sediment into public waters, an activity that threatens both public health and the ecosystem. The case focuses on the intensive farming activities in the Salinas Valley, where roughly half of all rural groundwater wells contain contaminants in excess of the drinking water standards and virtually all local surface waters exceed applicable state standards for toxics, nitrogen, sediment, or temperature. After the case was filed, Corinne Johnson ’12 and Jonathan Leland ’12 drafted a brief in opposition to the water agency defendant’s 14-point demurrer (motion to dismiss) and presented oral argument in the trial court, which overruled the demurrer on all claims and allowed the case to proceed to trial. In the spring quarter, Brigid and Corinne returned as advanced clinic students to successfully fend off defendant’s attempt to bifurcate the case and to launch our discovery effort, which is ongoing.

Clinic students also were busy this year with a case challenging the adequacy of the environmental review for a Marin County general plan amendment, specifically the analysis of impacts on the highly imperiled coho salmon. Coho salmon are a unique “anadromous” species, meaning they are born in fresh water, swim out to the ocean to spend their lives, and three years later return to their native stream to spawn and die. They are vulnerable to adverse impacts caused by human activity at each stage of this journey, and the federal wildlife agency responsible for their recovery has stated that coho salmon along the California coast are in an “extinction vortex.” The coho run most likely to survive this vortex is the one that spawns in the San Geronimo Valley in Marin. But creekside development causes sediment loading and water warming that can doom coho spawning, and recent years have seen a dramatic decline in returning adult fish. Our client, the Salmon Protection and Watershed Network (SPAWN), which has long urged the County to impose more protective development standards in the stream zone, finally felt compelled to sue when the County failed to act. During fall quarter, Khalial Withen ’12 drafted and argued an opposition to an intervention motion filed by a small group of local landowners, who made it clear that they intended to move for dismissal of the case. Despite Khalial’s strong argument, the court granted the motion, allowing intervention so that the landowner’s theory of dismissal could be briefed. In the spring, Tori Ballif ’12 helped draft our demurrer to the complaint in intervention and later took a break from her summer job at NRDC to successfully argue the matter before the trial judge. The result was dismissal of the intervention complaint, which also mooted intervenors’ pending summary judgment motion, allowing us to proceed with the merits of our claims. Between her other projects, Corinne Johnson ’12 got a good start on our trial brief, which will be filed this fall.

Stephanie Lake ’12 also argued before a trial court in our own attempt to intervene in a challenge by recreational fishing organizations to California’s recent adoption of marine protected areas along the coast. Our clients, NRDC and the Ocean Conservancy, have been involved in the administrative process leading to these protected areas for several years and sought to intervene in support of the state. Stephanie worked closely with the clients to put together a very persuasive motion, supported by more than half a dozen declarations by members of the client organizations, and she traveled to San Diego on the Friday before spring exams to argue the motion. Although the court was concerned about opening the floodgates to potential intervenors and, for this reason, ultimately denied our motion, Stephanie’s courtroom presentation was polished and cogent, especially in the face of some trying circumstances. In particular, the court issued a tentative ruling against our clients the day before the hearing and proceeded at the hearing on the assumption that we had seen that ruling, even though none of the lawyers in the courtroom had actually received it. Although that situation created some confusion (and some added stress), Stephanie remained poised and collected throughout and garnered a nice compliment from opposing counsel after the argument. Earlier in the year, Stephanie was deeply involved in the drafting of an amicus brief on behalf of the U.S. EPA in a D.C. Circuit Court case that flowed out of the clinic’s ten-year effort to reduce the discharge of invasive species from cargo vessels. That brief helped convince the court to reject a challenge to the first-ever EPA permit regulating these vessel discharges.

The clinic’s 13 years of work to protect the 10,000-year-old sacred Medicine Lake Highlands landscape from development, on behalf of the Pit River Tribe and others, continued throughout the year with settlement negotiations and two road trips to the northeastern corner of California, where Tori Ballif ’12, Siew Kwok ’12, Annie Bersagel ’12, and Adam Thomas ’11 all made presentations to the Tribal Council (and, in one case, federal agencies) as a follow-up to our earlier victory in the Ninth Circuit Court of Appeals.At the close of one of these meetings, the former Tribal Chair praised the students’ clarity and professionalism, announcing to the rest of the Council that “Now, that’s the way all of our attorneys ought to make presentations.”

Following up on his earlier briefing and argument in the trial court last year, graduating 3L Justin Goodwin ’11 authored the opening brief for a Ninth Circuit appeal in our challenge to the State Department’s failure to consider the impacts of its annual shrimp import certifications on endangered sea turtles. Dating back to the time of the dinosaurs, sea turtles are teetering on the brink of extinction today. Entanglement with shrimp vessels is a major source of sea turtle mortality, with tens (or hundreds) of thousands of them drowning in shrimp nets around the globe each year. While the U.S. imposes gear restrictions on domestic shrimp fishing vessels, in the form of so-called “turtle excluder devices,” many other countries do not. Thus, Congress required that any nation wishing to export shrimp to the lucrative U.S. market must meet comparable gear requirements. Our client, Turtle Island Restoration Network, challenged the State Department’s failure to properly implement this law, but the case was dismissed on procedural grounds. Aviva Horrow ’12 and Annie Bersagel ’12 contributed to briefing of the appeal, which is now set for oral argument in November 2011.

Two students penned detailed substantive letters to bring about policy changes. Holley Horrell ’12 convinced the California Department of Parks and Recreation to end harmful private cattle grazing in Tolowa Dunes State Park (Del Norte County) on the banks of the pristine Smith River. Allen Gleckner ’11 provided insightful comments in his letter to the Bureau of Ocean Energy Management, Regulation and Enforcement – formerly the Minerals Management Service – urging the agency to reevaluate its use of “categorical exclusions” in the environmental review process for oil and gas leasing in the Gulf of Mexico. Such an exemption from environmental analysis and disclosure preceded the disastrous Deepwater Horizon oil spill in 2010.

Several students also did yeoman work on our case challenging grazing allotments in the Bodie Hills area of the Eastern Sierra, which provides prime habitat for the imperiled sage grouse. Several years ago, clinic students drafted a petition to list the sage grouse as endangered. In 2010, the U.S. Fish and Wildlife Service responded to the petition by finding that such a listing is “warranted but precluded,” meaning that although the species deserves to be listed under the Endangered Species Act based on its declining status, the agency has no resources to do so at this time. In light of this finding, the clinic brought suit challenging the Bureau of Land Management’s continued allowance of destructive cattle grazing practices in important sage grouse habitat. Siew Kwok ’12 and Tori Ballif ’12 began drafting a preliminary injunction motion during the fall quarter and Holley Horrell ’12 picked up the project during the winter and spring quarters, putting together the arguments for what will ultimately be our summary judgment brief and working closely with our outside expert. We expect the case to go to hearing in March 2012.

Our spring quarter ended with an argument before the California Supreme Court in another long-standing case involving the adverse impacts of the cooling water system at the Moss Landing Power Plant on the Elkhorn Slough coastal estuary. Holley Horrell ’12 invested countless hours helping prepare the clinic director for the argument and sitting second chair during the hearing. This latest phase was the culmination of the client’s long effort to ensure that the cooling technology employed at the Moss Landing Power Plant is the “best technology available to minimize adverse environmental impact” as required by the federal Clean Water Act. Our work in this arena continues, however, with the clinic’s administrative advocacy for a new state cooling water policy and our recent intervention to defend that policy in a case filed by private power plants.

All of our students contributed to the clinic’s successes by workshopping briefs and mooting fellow students for oral arguments and presentations. The clinic’s work was overseen by Clinic Director and Luke W. Cole Professor of Environmental Law Deborah Sivas ’87, Supervising Attorney Alicia Thesing ’00, and Clinical Fellow Robb Kapla BA ’99, MS ’00. As always, Lynda Johnston provided invaluable legal assistance. Robb has now “graduated” from his teaching fellowship to join the Sierra Club as a Staff Attorney where we wish him well. With his departure, we welcomed the return of Leah Russin, a former Teaching Fellow, who now joins us as Staff Attorney. In the interim, she served as environmental counsel to U.S. Senator Dianne Feinstein (D-CA) and as Senior Counsel to the Director of the Bureau of Ocean Energy Management, Enforcement and Regulation. Leah returns with a wealth of Washington, D.C. experience to share with students.